All Things Whistleblower: A GAP Blog

White House Working to Protect FBI Whistleblowers

The White House has now pledged to strengthen FBI whistleblower protections to the Senate version of the Whistleblower Protection Enhancement Act of 2009, according to the Washington Times.

From the article:

Officials from the American Civil Liberties Union (ACLU), Government Accountability Project (GAP) and Project on Government Oversight (POGO) said this week that they were given guarantees that protections for FBI whistleblowers - federal employees who uncover fraud and waste - would be restored in a Senate bill when Congress returns in September. 

Furthermore, the White House was adamant that the original language of the bill, which would have damaged current protections for FBI employees, was not the true intention of the language:

"The administration has worked with the Senate to produce bipartisan legislation that would increase the rights and protections available to whistleblowers - legislation that had been stalled in Congress for many years," White House spokesman Ben LaBolt said.

"The legislation was never intended to weaken protections for FBI whistleblowers - it was intended to do just the opposite," Mr. LaBolt said in a statement Wednesday. "The administration will continue to work with the bipartisan group of senators to ensure that the final version of the legislation strengthens protections for FBI whistleblowers and for whistleblowers across the government."

GAP Legal Director Tom Devine articulated the issue:

GAP Legislative Director Tom Devine, who also thinks it was the FBI that pushed the change in the law, said White House attorneys have guaranteed him existing rights for FBI whistleblowers will be fully restored in the final bill. "Nobody's wasting their time on the [FBI whistleblower] issue, because except for the formalities we've won and it doesn't really matter," Mr. Devine said.

Whistleblower Victory in the Ninth Circuit

The Ninth U.S. Circuit Court of Appeals ruled that whistleblowers only need to show that they had disclosed something they believed was fraud to sue their former employers for wrongful termination, according to an article by Reuters.

This case delineated some of the requirements placed upon employees when suing under the whistleblower protection portion of the Sarbanes Oxley Act. Whistleblowers were truly given a victory when the court included the fact that the fired employees only need to show that they believed fraud was occurring.

Shawn and Lena Van Asdale worked as lawyers for International Game Technology (IGT) when they blew the whistle on what they believed to be shareholder fraud after a merger with another company. Both were subsequently fired and are suing under the Sarbanes Oxley Act's whistleblower protections. The court also rejected IGT’s claim that their communications were protected by attorney-client privilege when the two were lawyers for the company.

“Dirty Tricks” by the Healthcare Industry

A former vice-president-turned-whistleblower from the healthcare giant Cigna says that the healthcare industry is using “dirty tricks” to form public opinion over the healthcare debate, according to CNN. Skilled with its use of language, Wendell Potter says the industry is ratcheting up its efforts to criticize many of the reform plans, including the government-run plan originally proposed by President Obama.

These dirty tricks include currying favor with members of Congress at the same time as they wage huge campaigns to undermine the efforts at reform, according to an article in Politico.

Many citizens have been riled up over the healthcare debate, taking their voices to town hall meetings with their members of Congress across the country. One Congresswoman says that the extreme dialogue on healthcare is not new; in fact it is an elevated form of the loud town halls of the 1990s when healthcare reform was originally proposed.

But Potter has now stated that the ‘buzzwords’ being used to counter and criticize health care legislation originate from industry spinmeisters, who are doing so, according to the CNN article, “in an effort to manipulate public opinion.”

White House Sought to Weaken Whistleblower Protections for National Security Employees

In a conscious decision, the White House worked against the interests of national security whistleblowers, diluting their current protections in legislation that just passed a Senate committee, according to this article in the Washington Times. FBI employees and other national security whistleblowers will have less access to jury trials if they blow the whistle. E-mails from the White House Counsels office indicate the hesitancy the executive branch has about granting full whistleblower rights to all federal employees. The language from the White House is similar to that which ended up in the bill that came out of a committee in the Senate last week. From the article:

Whistleblower groups said they were disappointed by the White House changes.

Tom Devine, legislative director for the Government Accountability Project, said the White House changes created obstacles that could stymie national security whistleblowers, such as a new review panel to hear complaints from intelligence employees who bring allegations of wrongdoing to light.

"In reality, it just changes the drapes and the window dressing. All the hearings would still be conducted by the agencies," Mr. Devine said.

But, there is still time to fix this problem:

The Government Accountability Project's Mr. Devine said he supported other measures backed by the Obama administration, and said there's still time to extend protections to national security workers because House and Senate negotiators have yet to work out a final bill.

It should be noted, that although the Senate bill is not perfect, the majority of federal whistleblowers would have increased access to jury trials and greater overall protections.

Is Obama Keeping his Promise to Whistleblowers?

Whistleblowers have been encouraged by the actions President Obama has taken so far to protect whistleblowers, but are waiting to see if his administration fully lives up to its promises, according to an ABC News article. Good actions so far include his recent appointments to the Merit Systems Protection Board, both of whom are federal employees advocates, and the hard work his administration has put into the Whistleblower Protection Enhancement Act of 2009, which recently crossed an important Senate hurtle.

The article says: “And during his 2008 election campaign, Obama promised to protect whistleblowers, saying their ‘acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled.’”

One true test will be whether the Whistleblower Protection Enhancement Act of 2009 gets passed with strong language that supports federal whistleblowers for all employees, including those involved in homeland security.

Whistleblowers Get Victory in Senate

Whistleblower advocates like GAP are cautiously optimistic about the Whistleblower Protection Enhancement Act of 2009, which was passed out of a Senate committee last week, (Washington Post.) Hardworking Senators, the Obama administration and whistleblower advocates like GAP worked together to put together a bill that substantially increases protections for whistleblowers - including allowing for jury trial rights for whistleblowers whose cases linger for some time without being resolved. Although the bill is not perfect, it does greatly enhance the rights of federal employees to blow the whistle, and makes it more realistic for the Office of Special Counsel to seek disciplinary accountability against those who retaliate, which has been lacking in recent years.

In a separate ABC News article, Tom Devine GAPs Legal Director said, "That's a landmark breakthrough that the government and employee rights activists have been seeking for 30 years."

The Death of the WPA

With a ruling by the Merit Systems Protection Board effectively stripping away whistleblower protections, whistleblowers across the country (and GAP) are mourning the death of the Whistleblower Protection Act. (Center for Public Integrity article)

So what happened? Well, the MSPB ruled that when a whistleblower reveals information deemed “sensitive security information,” there are no protections for the whistleblower under the Whistleblower Protection Act. This is even the case when the information was revealed by the whistleblower before the information was classified as “sensitive security information.” This decision came down in a case involving former Air Marshal Robert MacLean, who was fired for revealing that marshals would no longer be required on long-distance flights, which could compromise the security of air passengers.

This decision essentially means that government agencies can view worker protections outlined by the Whistleblower Protection Act to be voluntary guidelines – effectively killing the WPA.

GAP’s Tom Devine put it best (in the Washington Post):

“Until Congress acts, the Whistleblower Protection Act is dead…the MacLean decision means government agencies can fire employees for any disclosure otherwise protected by the WPA. The decision reduces the WPA to a voluntary guideline that agencies can cancel at will by issuing blanket gag regulations."

Not that things weren’t bad for whistleblowers before – of 45 rulings by the administrative court in recent years, it has only backed whistleblowers once, Devine said in an Orange County Register article. Still, this is an official death warrant, and needs to be corrected immediately with the (hopeful) passage of the Whistleblower Protection Enhancement Act of 2009.

-- Dylan Blaylock